SUITS CONSUMER DEBT COLLECTION TO SUBSTANTIVE …
SUBSTANTIVE DEFENSES TO
CONSUMER DEBT COLLECTION SUITS
February 24, 2010 Suffolk University Law School
NATIONAL CONSUMER LAW CENTER WILMERHALE LEGAL SERVICES CENTER OF
HARVARD LAW SCHOOL VOLUNTEER LAWYERS PROJECT SENIOR PARTNERS FOR JUSTICE
and BOSTON BAR ASSOCIATION
About NCLC
The National Consumer Law Center? is a non-profit corporation founded in 1969 and dedicated to the interests and legal representation of low-income consumers. See our website for more information at .
Ordering NCLC Publications
Publications Department, National Consumer Law Center, 7 Winthrop Square, Boston, MA 02110-1245 (617)542-9595, publications@ or order online at .
Training
NCLC conducts national, regional, and local consumer law trainings. It also holds annual conferences on consumer rights litigation and other issues. Contact NCLC for more information.
Case Consulting
Case analysis for lawyers representing low-income consumers is among NCLC's primary activities. In particular, Administration on Aging funds allow us to provide free consulting to advocates representing older consumers on many types of cases. Massachusetts Legal Assistance Corporation funds case assistance to advocates representing low-income Massachusetts consumers. More comprehensive case analysis and research is available for a low fee.
Charitable Donations
NCLC's work depends in part on the support of private donors. Tax deductible donations should be made payable to National Consumer Law Center, Inc. NCLC has also received generous court-approved cy pres awards arising from consumer class actions to advance the interests of class members.
Attention
This publication is designed to provide authoritative information concerning the subject matter covered. Always use other sources for more recent developments or for special rules for individual jurisdictions. This publication cannot substitute for the independent judgment and skills of an attorney or other professionals. Non-attorneys are cautioned against using these materials to conduct a lawsuit without advice from an attorney and are cautioned against engaging in the unauthorized practice of law.
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National Consumer Law Center? and NCLC? are registered trademarks of National Consumer Law Center, Inc.
Copyright
CO 2010 by National Consumer Law Center, Inc. All rights reserved.
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TABLE OF CONTENTS
Agenda
About the Speakers
vi
I. INTRODUCTION
Types of Debt
1
Assignment
3
H. PROOF
Basic Elements of a Contracts Action 4
How the Business Records Act & the Best Evidence Rule Are Relevant
to Debt Collection Cases 4
Married Debtors
5
Mistaken Identity
6
Identity Theft
7
Statute of Limitations Issues 9
Frivolous Suits
11
III. AFFIRMATIVE DEFENSES
Accord & Satisfaction
13
Payment
13
Discharge in Bankruptcy
14
Minority & Capacity to Contract
14
Real Party in Interest Defense
15
Res Judicata
15
Statute of Limitations
16
Fraud
16
Good Faith & Fair Dealing
17
Mitigation & Unfair Enrichment 17
Unconscionability
19
Servicemembers on Active Duty 20
IV. COUNTERCLAIMS
Unlicensed Debt Collector
21
Unregistered Debt Collector
21
Improper Venue
21
Validation Notice Requirement 21
Suits on a Stale Debt
22
Torts for Abuses
22
Unauthorized Practice of Law 25
V. POST-JUDGMENT
Limitations on Debt Collector's Ability to Take Defendant's Property
(Exempted Property)
26
Setting Aside a Judgment for Failure to Serve Defendant
27
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VI. FORMS & SAMPLE PLEADINGS
Client Intake Sheet
30
Pro Se Answer
32
Answer
33
Defendant's First Request for Production of Documents Directed to
Plaintiff
34
Defendant's First Set of Interrogatories to Plaintiff
36
Defendant's Response to Plaintiff's First Request for Admissions
39
Defendant's Answers to Plaintiff's First Set of Interrogatories
43
Final Request for Answers under Rule 33(a)
49
Stipulation of Dismissal
50
Defendant's Motion for Relief from Judgment
51
Defendant's Motion to File Answer Late, Assert Affirmative Defenses
and Counterclaims 52
Affidavit of Defendant in Support of Motion for Relief from Judgment 54
Defendant's Memorandum of Law in Support of Motion for Relief
from Judgment
56
Interrogatories to Plaintiff Bank
60
Defendant's Request for Production of Documents from Debt Buyer 63
Defendant's Answers and Counterclaims (Debt Collection
Harassment)
65
Defendant's Motion to Dismiss
71
Sample Motion Opposing Summary Judgment on an Account Stated
Claim
72
APPENDIX The Life of a Debt FDCPA Claims Arising Out of State Court Collection Litigation Recent FDCPA Case Summaries
A-1 A-2
A-9
iv
AGENDA*
Attorney for the Day Training Session
Wednesday, February 24, 2010 10:00 a.m. to 12:00 p.m.
10:00-10:10 Opening Remarks
? Introduction & Program Overview
10:10-10:45 Interviewing Clients & Evaluating Cases ? What information do you need to obtain from clients? ? What does the debt collector need to prove? ? What defenses and counterclaims are available to consumers? ? What remedies are available in debt collection cases?
10:45-10:50 Q&A
10:50-11:20 Collection Case Procedures in District Court ? What is the purpose of a case management conference? ? What is the debt collectors' perspective on managing collection cases ? Identifying what motions need to be filed ? Preparing for trial
11:20-11:25 Q&A
11:25-11:50 Supplementary Process ? Limitations on the debt collector's ability to take the defendant's property ? Setting aside a judgment for failure to serve the defendant
11:50-12:00 (*A and Closing Remarks
*Agenda is subject to change.
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